Untitled Texas Attorney General Opinion

August 6, 1987 HonorableGary A. Goff OpinionNo. JM-763 HockleyCountyAttorney Courthousa Be: Whether a countyattorneywho Levelland.Texas 79336 is.appoiutedto serve as a special prosecutorfor another county may be paid for his services Dear Mr. Goff: You ask whetherau individualwho contractsto serve as a special prosecutor may be paid for--his services under the following circumstances: A police lieutenantwas chargedwith tampering with a governmentrecord. HocklayCountyDistrict - Attorney Warren Tabor, Jr. was disqualified becausehe was a potentialwitness in the case. so the servicesof a specialprosecutorwas required. Dwayne pruitt. au attorneyin Brownfield,Texas was contactedconcerningthe specialprosecution. Mr. Pruitt has a private law practice,but also serves as a county attorneywith felony prosecu- tion powers for Terry County. He was not elected under the ProfessionalProsecutorAct. It was in his capacityas a privateattorneythat Mr. Pruitt “a8 approached about serving as the special prosecutorin this case. Subsequently,the liockleyCounty Commissioners Court entered into a verbal agreement with Mr. Pruitt in his capacity as a private lawyer to representEockley County as a special prosecutor and he was appointed to the position by the districtjudge. Mr. Pruitt has discharged his duties as s special prosecutor for Hockley County, but a questionhas arisen concerningthe applicationsof section2.07(b)of the Code of CriminalProcedure. Ic- Does the statute prohibit Bockley County paying p. 3579 HonorableGary A. Goff - Page 2 (J&763) Mr. Pruitt for his services performed in his private capacityas contracted? Prom the facts you have relatedwe will assume that trial was in Hockley County for an offenseallegedto have occurredin that county. Your conclusionsthat the county attorney of Terry County has authorityto perform the duties of districtattorneyin Terry County, and that the office he holds does not fall within the provisionsof the ProfessionalProsecutorsAct, are supportedby sections45.323 and 46.002 of the Gove-nt Code. Your concern relative to the authority of the Hockley County CommissionersCourt to pay the countyattorueyof Terry County for his servicesas a specialprosecutorin Hockley County is promptedby the prohibitions appearing in article 2.07 of the Code of Criminal Procedure. Article 2.07 provides: (a) Whericker an attorney for the state is disqualifiedto act in any case or proceeding,is absent for the county or district,or is otherwise unable to perform the duties of his office, or in any instancewhere there is no attorney for the state, the judge of the court in which he repre- sents the state may appointany competentattorney to perform the duties of the office during the absence or disqualificationof the attorney for the state. (b) If the appointed attorney is also an attorney for the state, the duties of the appointed office are additional duties of his present office, and he is not entitled to additionalcompensation. (c) If the appointed attorney is not an attorneyfor the state,he is qualifiedto perform the duties of the office for the period of absence or disqualification of the attorneyfor the state on filingan oath with the clerk of the court. He shall receive compensationin the same amount and manuer as an attorney appointed to represent an indigentperson. (d) In this article. 'attorneyfor the state' means a county attorney,a districtattorney,or s criminaldistrictattorney. (Emphasisadded). p. 3580 Eowrable Gary A. Goff - Page 3 (JM-763) Sections (b) and (c) of article 2.07 of the Code of Criminal Procedure establish two distinct classes from which the appointed attorneymay be drawn. It contemplatesthat any one individualwill be either an attorneyfor the state or not au attorneyfor the state. One persoa cannot be in both classes at the same time even if he maintainsa privatepracticeduring his term as countyattorney. Section41.004 of the GovernmentCode prohibitsa county attorney from receivingcompensationto prosecuteany case that he is required by law to prosecute. See Hill Farm, Inc. v. Hill County, 425 S.W.2d 44 (Tex. Civ. App. - Waco 1968). aff'd, 436 S.W.2d 320 (Tex. 1969); Jonas v. Veltmauu, 171 S.W. 287 (Tex. Civ. App. - San Antonio 1914, writ ref'd);AttorneyGeneralOpinionMb'-483(1982). In countiesnot subject to the Professional Prosecutors Act, a county attorney geuerallymay receive compensationfor performingservices,whether for the county for whom he is au officeror for someoueelse, where no duty to perform such services is imposed by law. See Lattixorev. TartautCounty. 124 S.W. 205 (Tex. Civ. App. 1909. nowrit); Browning v. Tarrant County. 111 S.W. 748 (Tex. Civ. App. 1908. no writ). The attorueyof one county is under no generallegal obligationto act as attorneypro tom for mother county; therefore,absent some specific prohibitionthat acts as an exceptionto this general rule, a county attorneyof oue county acting as attorneypro ternfor another county would not be prohibited from receiving compensationfor performing such services. Article 2.07 of the Code of CriminalProcedureacts as such an exeption. Under article2.07, if the appointeeis an attorney for the state,he will not receiveadditionalcompensationfor serving a specialprosecutor. If on the other hand, he is not au attorneyfor the state, he may receive compensationfor his service. An "attorney for the state" includes a county attorney. Code Grim. Proc. art. 2.07(d). Mr. Pruitt, the attorneyfor Terry County, is thereforeau attorneyfor the state who is not entitledto additionalcompensation for serviceas a prosecutor. When the appointedattorneyis su attorneyfor the state,article 2.07(b) of the Code of Criminal Procedure sets out two legal cou- sequences: (1) the duties of the appointed office are additional duties of his present office; (2) he is not entitled to additional compensationfor performing those additional duties. By enacting these conditions,the legislaturemay have intendedto avoid possible violationsof articleXVI, section40 of the Texas Constitution,which providesthat: Ro person shall hold or exerciseat the same time, more than oue civil office of emolument.. . . Tex. Const. art. XVI, 940. See Texas TurnpikeAuthorityv. Shepperd. 279 S.W.2d 302 (Tax. 1955) (provisionnaming highway commissionersas uncompensatedox-officiodirectors of toll road authority does not p. 3581 , Eonorable Gary A. Goff - Page 4 (JM-763) violate article XVI, section 40 of the Texas Constitution). The prohibition on compensation found in article 2.07(b) may have been vieved by the legislature as absolutely essential to enable au attorney for the state to replace another attorney for the state under article 2.07(a). Article 2.07(b) of the Code of Criminal Procedure prohibits Eockley County from paying the county attorney of Terry County for his service as a special prosecutor pursuant to article 2.07(a) of the Code of Criminal Procedure. SUMMARY Article 2.07(b) of the Code of Criminal Procedure prohibits Eockley County from paying the county attorney of Terry County for his service as a spectal prosecutor pursuant to article 2.07(a) of the Code of Criminal Procedure. JIM WATTOX Attorney General of Texas MARY XEUEF. Executive Assistant Attorney General JUDGE ZOLLIE STEAXLEY Special Assistant Attorney General RICX GILPIN Chairmen, Opinion Committee Prepared by Susan L. Garrison Aesistaut Attorney General p. 3582